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A primer on common-law marriage rights in Canada

A couple sitting on a floor surrounded by moving boxes. Stock photo by Getty Images.

Increasingly, couples across Canada are choosing not to get legally married but are instead preferring the common-law route.

The Canada Revenue Agency, for tax purposes, defines a common-law partner as one who “is not your spouse, with whom you are living in a conjugal relationship” and to whom at least one of the following situations apply: has been living with you in a conjugal relationship that has lasted at least 12 continuous months; is the parent of your child by birth or adoption; or has custody and control of your child and your child is wholly dependent on that person for support.

There are some federal tax benefits available to couples who fit in the above definition even if they’re not considered common-law in their own provinces. Also, note that the same rights apply to same-sex common-law partners.

However, in Canada there are no federal laws regulating common-law marriage. Therefore, it falls under provincial jurisdiction.

This article will examine the rights of common-law partners to spousal support and property division in each province.

British Columbia

In British Columbia, common-law relationships are referred to as “marriage-like relationships” that lasted at least one or two years.

When it comes to the division of property or debt, those who have lived together for two years or longer are treated like married couples, which means the property acquired during the relationship is equally shared.

The two-year requirement usually also applies to things like health insurance, government benefits, and inheritance.

Spousal support is also available if the partners lived together for at least two years.

Quebec

Common-law spouses are not recognized under Quebec law and have few rights.

They are known as de facto couples, but there’s no standard definition of what common-law means, although it often does point to two people living together for one to three years.

The only rights common-law spouses have to be treated the same as married couples are for tax purposes, the right to rent their partner’s apartment if they separate, the possibility of adopting as a couple, consenting for medical care for a partner, organizing protective supervision if a partner becomes incapable of making decisions, private medical or drug insurance coverage under a partner’s plan, and compensation for work related accidents.

Ontario

See: common law rights upon breakup

In Ontario, the Family Law Act applies. The act defines common law spouse as either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years, or are in a relationship of some permanence if they are the natural or adoptive parents of a child.

The Family Law Act does not recognize common-law partners as being entitled to equalization of property. Only legally married couples can apply for net equalization of property. Usually, constructive trusts are used in this situation. However, you are considered a spouse for spousal support purposes and have the right to make a claim for spousal support as long as you fall in the above definition.

Nova Scotia

Here, too, the couple must have lived together in a “marriage-like” relationship. There is a two-year requirement to obtain rights to support under provincial law.

As of 2001, common-law couples can also register as domestic partners with vital statistics at Service Nova Scotia. Once they are registered, they will have many of the same rights, benefits, and obligations as married couples, such as pension benefits and the division of assets at separation or death.

Additionally, common-law spouses have the right to ask for spousal support if they have lived together for at least two years. If they are registered in a domestic partnership, there is no waiting period.

New Brunswick

In New Brunswick, you are considered common-law after having lived together for three years and one person is substantially dependent on the other. The law requires only one year of living together if the couple had a child.

A common-law spouse has the right to spousal support if the above periods have been observed.

The right to division of property is only given to legally married people, although common law spouses could be entitled to a constructive trust if they contributed to the property.

Alberta

Common law relationships are defined as adult interdependent partnerships. To be considered common law, they must have done one of the following: lived together for at least three years; lived together for some time and had a child; or entered into an adult interdependent partnership agreement

Generally, common-law parties do not have property rights under the Matrimonial Property Act with a few exceptions. They keep what they brought into the relationship.

Spousal support is available for adult interdependent partners.

Prince Edward Island

According to the Domestic Relations Act, “spouses” are defined as two people who are legally married; two people who have lived in a conjugal relationship for three years or more; or two people who are living in a conjugal relationship and are the natural or adoptive parents of a child or children.

As such, common-law partners have the right to ask for spousal support. However, it is the Family Law Act that applies to property, and as such, does not apply to common-law partners.

Yukon

Common-law partners may apply for spousal support, but their right to it is more limited than it is for married spouses.

The Yukon Family Property and Support Act only applies to legally married couples. Unless common-law partners sign cohabitation agreements that agree to follow the rules in the act, they have no rights to equal division of property.

Saskatchewan

To be considered common-law partners, the parties must have lived together for a minimum of two years.

The Family Property Act recognizes common-law couples who are entitled to an equal share of family property and spousal support.

Newfoundland

Common-law couples do not have the right to division of property under the Family Law Act. The basic rule is they keep what they brought into the relationship.

However, they are entitled to spousal support.

Northwest Territories

Common-law spouses have rights to both property division and spousal support if they have lived together for a minimum of two years.

Nunavut

Common-law spouses have rights to both property division and spousal support if they have lived together for a minimum of two years.

Manitoba

To be considered common-law in Manitoba, you have to either have lived together for three years; have lived together for one year and have a child; or have registered their common-law relationship with the government.

If the above applies to you, then you have division of property rights, as well as spousal support rights in Manitoba. 

Read More:

Canada Revenue Agency Marital Status

Common law rights upon break-up

Common law relationships